The Supreme Court Tackles the FCC’s “Fleeting Expletives” Policy again, This Time With Butts.

Ifs, Ands, and Butts

The Supreme Court gets the full-monty treatment.

Cher during the broadcast of the 2002 FOX Billboard Music Awards, where she used the F-word

Kevin Winter/FOX/Getty Images.

A few years back, when FCC v. Fox came before the Supreme Court, First Amendment scholars wondered whether Carter Phillips, who represented Fox Television in its challenge to the FCC’s “fleeting expletives” policy, would drop the S-bomb in oral argument at the court as he had done at the appeals court. He didn’t. Much to the chagrin of, well, me. But when the case comes back up to the court this morning on reruns, former Solicitor General Seth Waxman, who represents ABC Television (which has been added to the case for showing naked buttocks on NYPD Blue) is more than willing to make up for the lack of trash talk with some stone tushies.

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Waxman patiently explains to the rapt justices that ABC was never sanctioned for over a dozen NYPD Blue episodes over nine seasons that included bare buttocks. Not until the last one. Arbitrary, bad FCC. Then, he raises his arms, Moses-like, to the glorious friezes that surround the interior of the ceremonial courtroom. And then Waxman points to one sculpted classical stone lawgiver after another as he guides the justices through the fleeting bottoms that pervade their lofty spaces: “There's a bare buttock there, and there's a bare buttock here,” he marvels. “And there may be more that I hadn't seen. But frankly, I had never focused on it before.” To which Justice Antonin Scalia grits out, “Me neither,” while all of the justices gape up at the walls above them, like bemused Muppets on Veterinarian Hospital.

That’s right, today at the highest court in the land, Seth Waxman dropped the butt-bomb.

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If the issues, players, and language of the fleeting-expletives conflict sound vaguely familiar, it’s because the Supreme Court already addressed the FCC’s indecency policy in 2009.* The issue before the court is not whether the FCC can regulate obscenity. It can. The issue is whether the FCC can regulate “indecency,” as defined in a seminal 1978 case about a daytime radio broadcast of George Carlin’s “Filthy Words” monologue as “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs” between 6 a.m. and 10 p.m., when children might be watching.*

Until 2004, the FCC focused on the really egregious examples of indecency and let slide the instances of so-called “fleeting expletives,” those ritual F-bombs and S-bombs detonated during the 2003 Golden Globe awards (Bono) or the 2002 and 2003 Billboard Music Awards (Cher, Nicole Richie and Paris Hilton).

Following the implementation of a 2004 Bush-era policy change, the networks were fined for those kinds of episodes, plus Janet Jackson’s 2004 Superbowl nipple-bomb, plus a 2003 broadcast in the Midwest of NYPD Blue for an episode in which an actress revealed “the side of her buttocks and the side of one of her breasts.” The Second U.S. Circuit Court of Appeals in New York found the new FCC policy arbitrary and capricious. In 2009, however, the U.S. Supreme Court, in a 5-4 opinion written by Justice Scalia, upheld the policy but kicked it back to the appeals court to decide all the constitutional issues it didn’t want to contend with. The Second Circuit once again found the whole policy unconstitutionally vague, noting the chilling effect on broadcasters, the content-based nature of the indecent speech targeted, the changes in technology that make the old FCC indecency rules obsolete, and the proliferation of cable, satellite, and Internet broadcasting that goes unregulated. The Supreme Court agreed to hear the case again, presumably to resolve the First Amendment issues it avoided the first time. Sonia Sotomayor is sitting this one out.

The Obama Administration has defended the Bush indecency policy with great zeal, and Solicitor General Don Verrilli opens his argument by reminding the court that “when a broadcast licensee takes a license for the free and exclusive use of a valuable part of the public domain, it also accepts enforceable public obligations.” Verrilli reminds the court that regulation of indecency “has been a defining feature of the broadcast medium from its inception in the 1920s in the Radio Act and has continued to be a defining feature of this medium throughout its history.”

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Justice Ruth Bader Ginsburg stops him to point out that the problem with the FCC’s new policy is that “one cannot tell what's indecent and what isn't; that ... Private Ryan is okay, Schindler's List is okay, but NYPD Blue is not.” (Justice Elena Kagan will later characterize this as an FCC policy that “nobody can use dirty words or nudity except for Steven Spielberg.”) Verrilli replies that the number of FCC decisions that raise questions of arbitrariness are “a miniscule fraction” and that sure, it’s a context-based (read: totally arbitrary) rule the FCC is imposing here, but the court allowed context-based regulation in that 1978 “filthy words” case, Pacifica.

Justice Stephen Breyer raises a question about why the ABC ass case is being heard together with the fleeting-expletives case. Justice Ginsburg asks whether Hair could be broadcast on network television (Verrilli: “Serious questions”) and then whether the opera Metropolis could be broadcast (Verrilli: “Context-based approach”). Then Justice Anthony Kennedy interrupts the parade of naked horrible to clarify: “What you're saying is that there is a public value in having a particular segment of the media with different standards than other segments.” Verrilli replies that, yes, this is about preserving “a safe haven where if parents want to put their kids down in front of the television at 8:00 p.m. they're not going to have to worry about whether the kids are going to get bombarded with curse words or nudity.”

Because if you want that, you can find it in the back seat of my car, at rush hour when we’re late for Kung Fu. Just ask my children.

Kennedy replies that the V-chip is available and that “you ask your 15-year-old, or your 10-year-old, how to turn off the chip. They're the only ones that know how to do it.”*

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Justice Scalia jumps in: “Sign me up as supporting Justice Kennedy's notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this court and the people that attend other federal courts.” This would be a good time to reflect on the dress code for the statuary all around the court, but we leave that to later.

Verrilli notes that no matter how ubiquitous swearing has become, “You don't hear those words in churches or synagogues.” And Scalia jumps in to say, “Well, you do more and more.” Which means I am totally going to the wrong services.

Carter Phillips has 15 minutes to defend Fox Television again today and he and the chief justice mix it up a little over why the FCC completely failed to regulate TV indecency until 1975. Roberts says it’s because there was no TV indecency until 1975.

Kagan says, “It seems to be a good thing that there is some safe haven, even if the old technological bases for that safe haven don't exist anymore.” But Phillips replies that the system hardly “works” because, as he puts it, “we sit here today, literally facing thousands of ginned-up computer-generated complaints that are holding up literally hundreds of TV license renewals, so that the whole system has come to a screeching halt.”

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Roberts jumps in to add, “People who want to expose their children to broadcasts where these words are used, there are 800 channels where they can go for that. All we are asking for ...” he stops himself. ”What the government is asking for, is a few channels where you can say they are not going to hear the S-word, the F-word. They are not going to see nudity.”

Alito notes, “Broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8-track tapes.” Then he adds, “So why not let this die a natural death?” Kennedy presses further: “Isn't the inevitable consequence that you're arguing for on this fleeting-expletive portion of this case, that every celebrity or want to be celebrity that is interviewed can feel free to use one of these words?” Phillips replies that “we would continue to try to bleep it out as best we could.”

Seth Waxman rises to explain why context-based regulation means that the FCC punishes some violations and not others. Chief Justice Roberts shoots back that even children understand that context matters. “That's why you get a different rule in "Saving Private Ryan than you get with Paris Hilton and Nicole Richie.”

Breyer observes that the NYPD Blue episode to which the FCC objected was “called ‘Nude Awakening,’ and that “It's about the sexual awakening of a child.” Waxman replies that “it was not sexual awakening; this was a portrayal in the context of a story line about the difficulties and embarrassments of blended families.” The naked kind, presumably. Waxman adds that the FCC never sanctioned nudity before this, including Monty Python’s Flying Circus and Catch-22. He adds that the FCC still has pending before it a complaint “about the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks.” And that’s when he starts waving his hands all around and reveling in the beauty of the sculpted buttocks up above.

I count four votes to uphold the FCC policy, at least as it was applied in these cases, but with only eight votes in play, it’s hard to say what will happen. And who knows where Justice Clarence Thomas—who has signaled an aversion to this FCC rule, but also an aversion to undermining parental control—may come down on this one. All told, the lesson today seems to be that one man’s flying buttresses are another man’s floating butts. But all told, the true vibe here is that there should be a safe haven from gratuitous bottoms, even if that safe haven is not the Supreme Court.

Correction, Jan. 11 2011: This article originally misstated the court's 2009 indecency case as a 2010 case. Also, the 1978 George Carlin Pacifica case was mistakenly referred to as being decided in 1975. Additionally, due to a transcript error, a joke about the V-chip was misattributed to Donald Verrilli rather than Justice Anthony Kennedy.